Category Archives: Constitution

While my Republican brethren bray across the cablesphere about yesterday’s SCOTUS decision upholding Obamacare, I went a’reading to see what the long-time SCOTUS reporters had to say.

Writing about the majority opinion Linda Greenhouse wrote:

The chief justice’s masterful opinion showed that line of argument for the simplistic and agenda-driven construct that it was. Parsing the 1,000-plus-page statute in a succinct 21-page opinion, he deftly wove in quotations from recent Supreme Court opinions.

Who said that we “must do our best, bearing in mind the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme”? Why, it was Justice Scalia (actually quoting an earlier opinion by Justice Sandra Day O’Connor) in a decision just a year ago.

And who said that “a provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme” because “only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law”? Why, Justice Scalia again.

. . . we celebrate our independence. Because 238 years ago a brave group of revolutionaries threw off a colonial power. That’s something that has happened around the world many times – both before and since. But . . .

. . . I think our greater achievement is this: for 225 years we have maintained a continuity of government (even in war), peacefully transferring power (that one’s just since Washington to Adams, so 214 years) over and over . That’s a testament to the brilliance of our constitution and our continuing respect for it. Good for us!

Inside the majestic building housing the Supreme Court of the United States (truly a gorgeous building), the Justices yesterday ruled that the 35-foot buffer zone around an abortion clinic “violated protestors’ freedom of speech”. Outside that same building, the exclusion zone for protestors is 250 feet.

“I think it’s a constitutional violation” and “We’ve never had a president with that level of audacity and that level of contempt for his own oath of office.”

House Speaker John Boehner:

“There’s a Constitution that we all take an oath to, including him!”

And then, of course, there’s this:

Rep. Steve Stockman (R-Texas) said Tuesday night he left President Obama’s State of the Union speech early after “hearing how the president is further abusing his Constitutional powers.”

“I could not bear to watch as he continued to cross the clearly-defined boundaries of the Constitutional separation of powers,” Stockman said in a press release shortly after Obama’s speech ended. “Needless to say, I am deeply disappointed in the tone and content of tonight’s address.”

Stockman said Obama was promising to “break his oath of office and begin enacting his own brand of law through executive decree.”

Interesting that President Barry made this exact point yesterday. I guess he’s reading my Facebook feed cuz I said this on Monday in a comment thread – and in a post here. And I wish he’d said it sooner.

Obamacare is the law, as passed by the Congress, signed by the President, upheld by the US Supreme Court, and reaffirmed by the American people when they re-elected that President. That’s the way the US gov’t is designed to work. Half of those who tell pollsters they disapprove do so because it doesn’t go far enough – they wanted a single payer plan. The demand to defund or delay Obamacare comes from a single branch (and only a small minority of that branch) trying to undo – by holding hostage – a law created in the way designed by the Constitution.

But a new survey of 1,976 registered voters finds that only 33 percent believe that the health law should be repealed, delayed, or defunded. 29 percent believe that “Congress should make changes to improve the law,” 26 percent believe that “Congress should let the law take effect” and see what happens, and 12 percent believe that the law should be expanded. The bottom line? Voters are skeptical that Obamacare will live up to Democrats’ hype. But they also believe that it should be given a chance to succeed.

Universal health care (which Obamacare is most assuredly not – at least not yet) has been a political objective, indeed a platform goal, of the Democratic Party since Truman (Teddy Roosevelt and Nixon liked it too). So it has been a stated goal of at least half this nation for decades. It is now the law, as passed by the Congress, signed by the President, upheld by the US Supreme Court, and reaffirmed by the American people when they re-elected the President who sponsored it. That’s exactly the way our Federal government was designed to work.

The House GOP is not pursuing the will of the American people, they are pursuing a Party objective. They forget that they are only one of three branches of government (and only half of that branch!).

Our Founders knew well to build in protections against a tyranny of the minority. UPDATE: commenter Alan Scott points out – correctly – that I am wrong here. Our Founders built in protections against a Tyranny of MAJORITY. My bad.

The minority half of one branch of our government is on the wrong side of this.

Ladies and gentlemen! Citizens of television land! I call you to gather at theCSpan for the Greatest Show on Earth!! Ted Cruz has taken the floor.

This is the third real filibuster in the last few years and that should be a good thing. I much prefer it to the invisible procedural nonsense of placing holds. Last year, Bernie Sanders (D-VT) did eight hours and last winter Rand Paul did thirteen hours. I don’t think either changed any minds, but they were presented honestly and honorably.

But this one? After hours of Ted Cruz sends the whole populace rushing for the showers, other Congress Critters might decide that doing business in the shadows was the better idea after all.

As we approach the start of the GOP’s Annual Hunting Season To Capture and Kill Legislation (Social Security from the 1930’s, Medicare from the 1960’s, and those 21st Century obscenities, Bush’s Medicare Part D Rx plan, and Obama’s nose under the door of universal health care), I like to remember this guy. Here’s then-former President Dwight D. Eisenhower in a 1954 letter to his brother.

Now it is true that I believe this country is following a dangerous trend when it permits too great a degree of centralization of governmental functions. I oppose this–in some instances the fight is a rather desperate one. But to attain any success it is quite clear that the Federal government cannot avoid or escape responsibilities which the mass of the people firmly believe should be undertaken by it. The political processes of our country are such that if a rule of reason is not applied in this effort, we will lose everything–even to a possible and drastic change in the Constitution. This is what I mean by my constant insistence upon “moderation” in government. Should any political party attempt to abolish social security, unemployment insurance, and eliminate labor laws and farm programs, you would not hear of that party again in our political history. There is a tiny splinter group, of course, that believes you can do these things. Among them are H. L. Hunt (you possibly know his background), a few other Texas oil millionaires, and an occasional politician or business man from other areas.Their number is negligible and they are stupid.

. . . I choose to celebrate the continuity of our government. We’ve managed it for 237 years. That’s an achievement and a testament to the brilliance of our constitution and our continuing respect for it. So good for us. Herbunk created this a few years ago and he just reposted for 2013. Also, it may be the best morph ever.

When he is bad, he is very very bad, but when he is good, he is very very good. Here in his Washington Post column Charles Krauthammer (also senior serious intellectual, FOX News) looks at SCOTUS’ DOMA decision and explains quite well what it means.

He’s not particularly judgmental about either the issue or about the Court’s action. He breaks the decision down to its essentials and says – as I believe – that Federal recognition is now inevitable. Because, as he noted, the Court used the rationale of ‘equal protection under the law’. By saying so in the decision, he says, they pretty much guarantee that full recognition is on the docket next session and it will happen.

. . . if the argument is equal protection, one question is left hanging. Why should equal protection apply only in states that recognize gay marriage? Why doesn’t it apply equally — indeed, even perhaps more forcefully — to gays who want to marry in states that refuse to marry them?

If discriminating (regarding federal benefits) between a gay couple and a straight couple is prohibited in New York where gay marriage is legal, by what logic is discrimination permitted in Texas, where a gay couple is prevented from marrying in the first place?

Krauthammer finds none. He notes the broad smile on the face of David Boise who argued for the Prop 8 ruling and says:

He understood immediately that once the court finds it unconstitutional to discriminate between gay and straight couples, nationalizing gay marriage is just one step away.

Scalia on DOMA (passed by Congress almost 20 years ago ago by a vote of 85-14 in the Senate and 342-67 in the House):

We have no power to decide this case,” Scalia wrote. “And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.

Scalia on Affirmative Action (law was extended by Congress in 2006 for 25 more years by a vote of 98-0 in the Senate and 390-33 in the House):

Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes… It’s a concern that this is not the kind of a question you can leave to Congress…

And jkust for the heck of it, here’s somerthig else he wrote:

DOMA is motivated by ‘bare … desire to harm’ couples in same-sex marriages

I think I did pretty well with my SCOTUS predictions, which means everyone must “bow to my majesty” (much preferable to being “mocked without mercy”).

DOMA – The Supremes knock it down as unconstitutional. NAILED IT!

California Prop 8 – Unconstitutional. NAILED IT! (Sheepish Update: Turns out this one is limited to CA and is based on standing. So maybe only half for me here. Can I count the two ‘halfs’ as ‘one’. I say yes. So still Two Out of Three. So there.)

Affirmative Action – limited decision, but basically will say the program has – in some instances – run its course. They side for the Plaintiff. ALMOST HALF RIGHT? They held back for sure by sending it back and hinted at future favorable rulings if a Plaintiff has ‘standing’.

(Here’s something from back when this lad had a voice, a beautiful one):

As those who give a damn wait for the Supreme Court to wrap up this session and announce their final decisions, I dare to repost my own predictions. Know that I bravely put these out here so that you may bow to my majesty if I’m right, or mock me without mercy if I’m wrong.

DOMA – The Supremes knock it down as unconstitutional

California Prop 8 – unconstitutional

Affirmative Action – limited decision, but basically will say the program has – in some instances – run its course. They side for the Plaintiff.

UPDATE: Seems this program has been going on for years through two administrations and the authorization is renewed, almost automatically, every 90 days. Some nat’l security reporters point out that this has been reported on before and is the result of the big FISA public debate of a decade ago, but it disappeared from the public conversation. (We really need to do better than this.)

Not all things are the same: not all whistle blowers are honorable, but the tradition of revealing secret government activity to the press . . . that will always be the essential ingredient if the press is to fulfill its most important mission. Our press is charged to:

In praise of whistle-blowers whose risky disclosures of official wrongdoing make the nation stronger rather than weaker . . . “The order was marked TOP SECRET//SI//NOFORN, referring to communications-related intelligence information that may not be released to noncitizens. That would make it among the most closely held secrets in the federal government”

This leaker is no doubt fully aware he/she has committed a crime but got the priorities exactly right. So to some unknown person – well done.

From one of our best investigative journalists, here’s Steve Coll, today in The New Yorker:

It seems likely that Holder or his deputies have authorized other press subpoenas and surveillance regimes that have not yet been disclosed. The Justice Department has acted belligerently even in cases where no grave harm to the public interest has been demonstrated, or where, as in the A.P. case, the leaks under suspicion have served to publicize the Administration’s successes. . .

He allows that the increase in investigations by Justice in recent years may relate to this:

Obama inherited a bloated national-security state. It contains far too many official secrets and far too many secret-keepers—more than a million people now hold top-secret clearances. Under a thirty-year-old executive order issued by the White House, the intelligence agencies must inform the Justice Department whenever they believe that classified information has been disclosed illegally to the press. These referrals operate on a kind of automatic pilot, and the system is unbalanced.

But ultimately, Coll says:

. . . The media are not just watchdogs barking at the White House and the C.I.A. The First Amendment aspires to a fuller compact among citizens, including between journalists and confidential sources, that is premised on the self-evident truth that secrecy and concentrated power are inherently corrupting.

Everyone is having their say about the IRS’ Lois Lerner who took the Fifth yesterday before a Congressional committee (just like that conservative icon Oliver North did). Here’s Fat Boy:

You have to be very careful in making judgments about people based on physical appearance, although I’ve gotten really good at it.

I guess we all see what we want to see when we look in the mirror. Anyway, I hear you Rush and I am being careful. I do think it through before I call anyone Fat Boy or “the morbidly-obese, four times married” . . . . and after thinking it through, I feel I am morally entitled to toss schoolyard insults at you, because that’s what you do for a living. Good for the goose, good for the . . .

In an earlier post, I quoted (and agreed with) Ron Paul in his expression of concern about the militarized nature of the response to the Boston bombings. In the comments, I responded to a polite challenge from jamesb who put forward a common question: “If those two young men had walked into a house and held someone hostage with bombs…..”

I replied:

james, there will always be dilemmas confronting us when we try to balance state security with civil liberties. Which, as a society, do we decide is most in need of protection? Hostage crises, for instance, have happened throughout history, whereas the US Bill of Rights stood alone for centuries as an enormous step forward for mankind.

“Jonathan Turley, a Constitutional lawyer, says it best at his blog in a post titled “The Pavlovian Politics of Terror”:

“My greatest concern is that the Boston response will become the accepted or standard procedure . . .

. . . as a thousand papercuts from countless new laws and surveillance systems slowly kill our privacy, we might want to ask whether a fishbowl society will actually make us safer or just make us feel that way.”

In the eyes of many, I’m sure the police actions in Boston were appropriate because we’re at war with terror, or terrorism, or terrorists. Whatever. I don’t deny the threat but I abhor the notion that this is ‘war’. Anyway, take it away Ron:

Former Rep. Ron Paul said the police response to the Boston Marathon bombings was scarier than the bombing itself, which killed three and wounded more than 250.

“The Boston bombing provided the opportunity for the government to turn what should have been a police investigation into a military-style occupation of an American city . . . This unprecedented move should frighten us as much or more than the attack itself” . . .

Paul said the scenes of the house-to-house search for the younger bombing suspect in suburban Watertown, Mass., were reminiscent of a “military coup in a far off banana republic.”

Not sure about that coup part, but certainly it looked like a military action.

“Forced lockdown of a city,” he wrote. “Militarized police riding tanks in the streets. Door-to-door armed searches without warrant. Families thrown out of their homes at gunpoint to be searched without probable cause. Businesses forced to close. Transport shut down.”

During the American Revolution, local militias – who played the role of today’s National Guard – had no collective arms and depended entirely upon the arms and ammunition of private citizens. (Okay, I knew that part.)

To facilitate response time (the British are coming! the British are coming!), they often stockpiled their arms in one place for easy access. Basically, an armory.

Before the Revolution and in its very early days, the British – the ‘central government’ of that day – took to seizing those arms, something the good folks took personally – those guns were private property after all. (Might that be the origin of our love affair with personal weapons – well, public weapons as well, since we are the largest arms exporter in the world.)

There are several references to militias in The Constitution (which I did not know; I thought it was only addressed in the Second Amendment). Article I assigns Congress the power to:

. . . provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; [and]

To provide for organizing, arming and disciplining, the Militia, and for governing of such Part of them as may be employed in the Service of the United States.

(I’m getting this from Jeffrey Toobin’s terrific 2012 book about Obama and the Roberts Court by the way.)

Toobin goes on:

Article II says the president is C in C of the army, navy and “Militia of the Several States when called into the actual Service of the United States”. It wasn’t until the Militia Act of 1903 that their functions were formally subsumed into other agencies, like the National Guard . . .

And this: in the first 200 years of our existence, the Supreme Court discussed the Second Amendment exactly once, in 1938. It – U.S. v. Miller – was a challenge to the National Firearms Act passed in 1934 in response to the gang violence of the day and in particular to the St. Valentine’s Day massacre, which horrified the country not least because ‘machine guns’ were used. The Court ruled – unanimously – that the Act complied fully with the Second Amendment. Justice McReynolds spoke for the Court, saying they’d concluded that the Second Amendment existed to preserve the rights of militias – not individuals – to keep and bear arms.

And the issue disappeared once again, resurfacing only after the Kennedy assassinations.

The Gun Control Act of 1968 had widespread public support including the strong support of the NRA (when they still represented actual gun owners).

IRONY ALERT: That didn’t change until Ronald Reagan’s 1976 campaign for the presidency. Writing an article for Guns and Ammo in 1975, he set off an entirely different conversation about guns, working opposition into a libertarian message, even insisting that the Second Amendment prohibited gun control – so much so that the 1976 Republican platform proclaimed a new-found opposition to gun control, reversing its previous 1972 platform supporting gun control. And in 1977, hard-liners staged a coup d’etat at the NRA to align with the new position). Everything changed.

But back to 1939. Toobin calls the U.S. v. Miller decision:

entirely originalist in its reasoning. The opinion quoted the provisions of Article I dealing with the powers and then stated “With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.”

Toobin continues:

Indeed, if the Second Amendment were intended by its framers to give individuals a right to keep and bear arms, the initial militia clause [“A well-regulated Militia being necessary”, etc.] would be both unnecessary and meaningless.”

I find the reasoning of both that 1939 Court and of Jeffrey Toobin to be impeccable. (And as proof that I care, know that I had to type all this . . . no cut and paste from da books!)